Massachusetts Enacts Landmark Campus Sexual Violence Law

Massachusetts Gov. Charlie Baker signed on Jan. 12, 2021, landmark legislation addressing sexual violence on college and university campuses. The new law is the state's version of Title IX, the federal law prohibiting sex discrimination in higher education, with additional focus on preventing, reporting and responding to sexual assaults and other forms of sexual violence. The state's version overlaps with various aspects of Title IX and other federal laws in requiring policies and procedures to address sexual misconduct promptly and equitably. In addition, it imposes further obligations, most notably a requirement to conduct a campus climate survey every four years, implement specific student and employee training programs, and submit to the state an annual report.

The Massachusetts Commissioner of Higher Education commented in his department's newsletter that the "legislation signed by the Governor will give the Department of Higher Education a new set of tools to advance our campus safety goals. The … climate surveys … will usher in a new era of transparency… . This is not only a matter of safety; it's a question of equity as well. Research suggests that our most vulnerable students, including recent immigrants, LGBTQ students, and students with disabilities, are at greater risk of sexual assault and less likely to report it. I look forward to working with our institutions to implement the new law and create safer teaching and learning environments for all."

The new law will be codified at General Laws Chapter 6, Sections 168D and 168E, and institutions of higher education will have to comply with its substantive provisions by Aug. 1, 2021. The Department of Higher Education is to issue regulations to implement the Campus Sexual Violence Act by Aug. 1, 2021.

Covered Institutions and Conduct

The Campus Sexual Violence Act applies to public and independent institutions of higher education that are physically located in Massachusetts and have degree-granting authority. Institutions that are online-only, non-degree granting or located only in other states are not subject to the Act.

The Act applies to "sexual misconduct," defined broadly to encompass sexual assault and other forms of sexual violence, including specifically misconduct based on sexual orientation and gender identity or expression. Sexual misconduct for purposes of the Act also includes domestic violence, dating violence and stalking – categories of misconduct and crime also included in the federal Violence Against Women Act, as amended.

Surveys

Covered institutions will need to survey all students at least every four years regarding specified campus safety topics. The survey topics go well beyond the established federal reporting requirements under the Jeanne Clery Disclosure of Campus Security Policy and Campus Crime Statistics Act of 1990, 20 U.S.C. §1092(f) (Clery Act). Institutions will need to survey students not only about instances of sexual misconduct and the circumstances in which they occurred, but also about students' awareness of institutional policies and procedures, the advice and guidance students received, demographic information, and "perceptions" of campus safety and "confidence" in the institution's efforts at protection.

A diverse task force, authorized by the Act, will develop model questions and recommendations to provide institutions with direction and guidance on effective means for conducting the required surveys. The task force will be co-chaired by the Commissioners of Higher Education and Public Health, or their designees. Institutions may develop and use their own surveys, provided that they are designed to obtain the data required by the Act, meet the quality standards established by the Commissioner of Higher Education, and include a certain subset of model questions. Summaries of survey results must be posted on the institution's website.

The task force is expected to publish model survey questions and recommendations no later than Jan. 1, 2022.

Policy and Notice Requirements

In addition to federal obligations under Title IX and the Clery Act, covered institutions must satisfy specific policy and notice requirements under the Campus Sexual Violence Act for students and employees. To avoid conflicts, the new state law requirements are to be interpreted "consistent with federal law and regulation." Generally, covered institutions must adopt, implement and publish accessible policies on sexual misconduct that include prevention measures, confidential and other support resources, and complaint resolution procedures. The statutory requirements are comprehensive and should be scrutinized. Of particular note are the following provisions:

• Policies must "comport with best practices and current professional standards."
• Institutions are obligated to advise students about their options for medical or emergency support, assistance from crisis centers or other counseling services, interim protective measures, protection through law enforcement or the courts, as well as complaint resolution procedures.
• Complaint resolution procedures must provide detailed written notice of the alleged misconduct, presume the respondent is not responsible, provide parties with equal access to evidence from the investigation, prohibit the parties from directly cross examining the other, permit attorneys and advisors for the parties, provide equal opportunities for appeal if appeals are afforded, and include a written outcome notice within seven days after the disciplinary process is completed.
• The Act does not require live hearings to resolve complaints, nor does it prescribe a standard of evidence that must be applied.
• Institutions must provide amnesty from disciplinary sanctions to students who report sexual misconduct, unless their report was not made in good faith or their own misconduct was "egregious," which includes placing the health and safety of another person at risk.
• Institutions must designate at least one confidential resource provider, who is subject to specific training requirements and detailed confidentiality obligations.
• To the extent feasible, institutions must adopt a memorandum of understanding with local law enforcement and with community-based sexual assault and domestic violence centers if institutions do not provide their own.
• Policies and procedures concerning sexual misconduct must be emailed to all students and employees by Aug. 20 each year.
• Websites must include the sexual misconduct policies and procedures, the annual campus security report required by the Clery Act, timely warning and emergency notification information as required by the Clery Act, contact information for the Title IX Coordinator and confidential resource provider, medical and "rape kit" resources as well as transportation options, and contact information for a 24-hour hotline for sex misconduct information.

Mandatory Training

Institutions must provide new students and employees with comprehensive training on sexual misconduct prevention, identification, reporting and response, within 45 days of their matriculation or employment The training must cover applicable civil rights laws, the role of drugs and alcohol, reporting channels, anonymous methods of reporting, complaint resolution procedures and the range of sanctions, confidential resources, bystander intervention and risk reduction, and other resources.

Further, anyone responsible for implementing any part of a sexual misconduct complaint process must satisfy rigorous training or experience requirements that include interviewing witnesses, consent, the impact of drugs and alcohol, the effects of trauma, sensitivity, disabilities, due process, and "cultural competence" to understand how sexual misconduct may impact people differently depending on their backgrounds.

Annual Report

By Dec. 1 each year, covered institution must submit to the Department of Higher Education a report concerning the number of sexual misconduct reports, reports that were investigated, students and employees found responsible and not responsible, and the disciplinary actions imposed. The Department of Higher Education will prescribe the form and manner for submitting such data. This state reporting requirement is in addition to the annual campus security report required under federal law by the Clery Act.

In sum, the Campus Sexual Violence Act imposes substantial new compliance obligations on colleges and universities in Massachusetts. Because these new obligations are numerous and detailed, covered institutions are well advised to begin compliance efforts now. Developing compliance checklists, standard forms, and designating specific compliance obligations is highly recommended. It remains to be seen whether other states will follow this precedent.

For more information about compliance with the Campus Sexual Violence Act, Title IX, the Clery Act or campus safety more generally, please contact the authors or your contact on the Education Team at Holland & Knight.

Information contained in this alert is for the general education and knowledge of our readers. It is not designed to be, and should not be used as, the sole source of information when analyzing and resolving a legal problem, and it should not be substituted for legal advice, which relies on a specific factual analysis. Moreover, the laws of each jurisdiction are different and are constantly changing. This information is not intended to create, and receipt of it does not constitute, an attorney-client relationship. If you have specific questions regarding a particular fact situation, we urge you to consult the authors of this publication, your Holland & Knight representative or other competent legal counsel.